December 3, 1999

U.S. Department of Labor (S-2315) DOL/OSHA
Attn: Mr. Charles Jeffress, Assistant Secretary of Labor
Occupational Safety and Health Administration (S-2315)
200 Constitution Ave., NW
Washington, DC 20210


Assistant Secretary Jeffress:

The American Society of Safety Engineers (ASSE) appreciates the opportunity to provide comment on the OSHA initiative, Proposed Policy Statement Concerning the Occupational Safety and Health Administration's Use of Voluntary Employer Safety and Health Self-Audits. We see this proposal as an invitation to further improve the ASSE-OSHA relationship. We point out that ASSE continues to participate intensively with OSHA-related initiatives. Such participation with OSHA is important for ASSE as the Agency is one of the key areas where the Society lives and works. Generally, ASSE input to the public policy safety and health process has been positively acted upon, ranging from incorporation of our comments on the abatement rule to the revised OSHA Strategic Plan. If there are public hearings, ASSE will, at least, be present and, if warranted, provide input to the deliberations.

The American Society of Safety Engineers (ASSE), is the oldest and largest Society of Safety Professionals in the world. Founded in 1911, ASSE represents almost 33,000 dedicated safety professionals. Included in this membership are Certified Safety Professionals, Professional Engineers, ergonomists, academicians, fire protection engineers, system safety experts, industrial hygienists, physicians, occupational nurses, and an impressive collection of other disciplines, skills, and backgrounds. We pride ourselves on our dedication to excellence, expertise, and commitment to the protection of people, property, and environment on a world?wide basis.

ASSE serves as Secretariat of seven (7) American National Standards Institute Committees (ANSI) developing safety and health standards which are used by private sector organizations as well as state/Federal governmental agencies such as MSHA, OSHA, etc... ASSE members also sit on over forty (40) additional standards development committees and the Society sponsors educational sessions on standards development. The Society also has eleven (12) technical divisions consisting of: Construction, Consultants, Engineering, Environmental, Health Care, International, Management, Public Sector, Risk Management and Insurance, Mining, Industrial Hygiene, and Transportation. The ASSE members included in these divisions are leaders in their field with the knowledge and expertise needed to move safety and health forward on a global level.

Overall Comments
ASSE has long supported efficient/effective rulemaking by federal agencies such as OSHA, MSHA, EPA and DOT, and we recognize that reinvention and reexamination of existing regulations, programs and policies is critical in order to make the agency responsive to current safety and health issues. The duties of ASSE's members frequently include performance of self-audits or third party audits for companies that are regulated by federal OSHA or its State counterparts. Therefore, ASSE's members, their employers, employees, coworkers, and clients will be greatly affected by the proposed policy revision. To this end, the Society has the requisite expertise to offer comments on this important subject. Our basic interpretation of the policy statement is that OSHA will now not walk into a facility and ask to see the audit records. Furthermore, our overall evaluation of the proposed policy statement offers the following consensus.

While, this proposal is certainly a step in the right direction, and ASSE commends OSHA for this proactive position, we still have concerns with the current proposal. The consensus of our members appears to be that while OSHA has published a sound public relations document, it gave up little in this proposal and retained or even enhanced virtually all of the Agency's options for action.

We have read the proposed definition of a self-audit (B-1), and have some basic observations on the definition itself. Our reading of the definition would indicate that the definition addresses both audits and evaluations. While to some it might be simple semantics, for ASSE, it is not. Safety professionals have long taken the position that there is a significant difference between an audit and an evaluation. An audit for example could be a review of the OSHA 200 Log to indicate that it has been maintained in compliance with the federal requirements. On the other hand, an evaluation could encompass reviewing a facility's entire safety and health management program to include all hazards, exposures, opportunities for improvements, and organizational structure/operations integral to the entity's success. Our suggestion is that OSHA specifically recognize in the policy statement summary, when it is published in final form, that occupational safety and health evaluations are included under the definition of self-audit as defined in the statement.

We note that the proposed definition of Self-Audit (B-1) is: Means a systematic, documented, and objective review by an employer of its operations and practices related to meeting the requirements of the Occupational Safety and Health Act.

We have noticed that in Section II, Description of Proposed Policy, OSHA specifically recognizes that the draft policy applied to: audits (1) that are systematic, documented, and objective reviews conducted by, or for, employers… Our interpretation of this statement is that protection is also given to a report conducted by an independent consultant for an employer. Providing such protection for the consultant's report is also of significant importance in enhancing occupational safety and health. ASSE has long taken the position that there is significant opportunity for occupational safety and health improvement in smaller businesses. Since it is unlikely that small businesses will have a safety professional on its staff, it is important that consultant reports also receive the same level of protection. We see such an approach as a way for OSHA to enhance occupational safety and health in small businesses, provide benefit to small business, and try to meet some of the intent of recent Congressional legislation. Our suggestion is that the current definition of a self-audit is not totally consistent with the intent of the Agency. We offer the following minor edit:

Self Audit (B-1) - Means a systematic, documented, and objective review by, or for, an employer of its operations and practices related to meeting the requirements of the occupational safety and health act.

ASSE was very pleased to read that OSHA recognized the importance of using competent safety and health professionals to either conduct or direct audits. Here is an excellent first step by OSHA in encouraging employers to use staff safety professionals, or contract with those safety professionals who have the competence and expertise to conduct safety audits. A historical concern of ASSE is that the safety profession is heavily regulated in regard to how a function/practice is to be conducted, but, there has been little if any guidance addressing the level of competence of those who will be performing these activities. In the future we see OSHA being asked to define the competence of safety professionals, and ASSE stands ready to support the Agency when this issue is brought up. The Society has advocated professional competence for almost ninety (90) years, and we have the resources, expertise, and history to assist with this issue, (e.g. ANSI Z590 draft standard, National Registry of Safety Professionals and Other Registrants, introduction of legislation defining competence in different states, etc…).

Specific Legal and Policy Application Insights
It has been ASSE's longstanding position that employers should be permitted to keep internal company audits, reviews, documents, and personal records confidential under most circumstances. ASSE has previously recommended to Congress that audit information should not be disclosed except to the extent that the report is (1) sought in conjunction with the adjudication of a criminal proceeding, an incident resulting in the hospitalization of three or more employees, a fatality investigation, or (2) the record, report, or other information is sought for purposes of establishing the cause of a particular alleged violation, but only if the Secretary has established, based on independent evidence, that the condition or practice of the employer was not in compliance with the Occupational Safety and Health Act or its implementing regulations or mandatory standards.

One other area where such reports could reasonably be requested by a compliance officer, as noted in the proposed policy, is where such self-examination is specifically required in order to comply with a particular OSHA standard, e.g., 29 CFR 1910.119 (general industry process safety management standard), 29 CFR 1910.120 ("HAZWOPER" standard) and 29 CFR 1926.20(b) (construction site inspection requirement). In such cases, production of a written document may be the only way that an employer can demonstrate compliance during an inspection or in the course of litigation.

However, OSHA has specifically excluded such required records from the scope of this audit policy. 64 Fed. Reg. 54361. Also exempt are records mandated under the Records Access Rule, (29 CFR 1910.20). The proposed policy declares that it is applicable only to "systematic, documented and objective reviews conducted by or for employers to review their operations and practices to ascertain compliance with the Act." .

In general, ASSE recommends that audit records, reports, or information should only be admissible under the circumstances described above, and should be deemed admissible as evidence in a civil or administrative proceeding only to the extent that the Secretary establishes that the employer did not act in good faith with respect to the audit for which such record, report, or other information was prepared or obtained. This could be verified by subjecting the document at issue to in camera review by a judge, before the document is ordered released to OSHA or deemed admissible in the judicial proceeding. In brief, ASSE does not believe that audit privilege should be absolute, but the Society does hold that such documents should be protected except where their release is required under the limited circumstances enumerated above.

ASSE suggests that protecting self-audit reports will greatly encourage employers to take proactive measures to keep their workplaces safe and healthful. ASSE has previously articulated this position in comments submitted concerning OSHA reform legislation during the 106th Congress (e.g., S.385 and HR. 1427, Hr. 1438 and HR 1439) and similar measures which were considered in earlier sessions. We encourage OSHA to review the position papers on these bills, which are available on ASSE's website, in the governmental affairs section.

It has been suggested in various venues that workplace fatalities, injuries and illnesses have reached a plateau. Whether that is true or not, it is clear that new approaches will be necessary in order to see substantive reductions in workplace injury, illness, and fatality incidents. The simple fact is that, given the current number of OSHA compliance officers, the majority of the six million-plus OSHA-regulated worksites in the United States will never be inspected unless (1) there is a serious accident (2) there is an employee complaint, or (3) the worksite is targeted forinspection under a special emphasis program because of the industry's overall injury/illness experience or the individual worksite's history of injuries, illnesses or violations. Therefore, a certain level of self-inspection by employers must be encouraged in order to ensure that safety and health hazards are identified and corrected, and that injuries and illnesses are prevented.

It is ASSE's belief that increased utilization of safety audits is one such approach and that OSHA encouragement of audits represents sound public policy. However, increased implementation of voluntary worksite audits can only be achieved if an employer can be assured that his or her good faith actions to identify and eliminate potentially hazardous conditions will not be used as a "roadmap" during inspections or as evidence against the company or individual agents in proceedings related to subsequent OSHA enforcement actions.

ASSE is pleased that OSHA recognizes the value of voluntary self-audit programs under which employers identify and promptly correct hazardous conditions. However, the Society is disturbed about OSHA's articulation that it will not "routinely" request self-audit reports at the initiation of an inspection, (64 Fed. Reg. 54360). The term "routinely" is quite subjective and the bottom line is that, under the proposed policy, every employer is subject to having a compliance officer request, demand or issue a warrant to obtain any and all self-audit documents before commencement of the inspection, without any independent evidence that the employer has violated the law. Although the proposed policy would limit this pre-inspection access to those situations where the agency has "an independent basis to believe that a specific safety or health hazard warrants investigation," there is little to suggest what might constitute such a basis.

Theoretically, OSHA could have an ample "basis" simply because a particular type of violation is "frequently observed" within the employer's particular SIC code and therefore the inspector believes that audit records might be "relevant" in determining whether a hazard exists at that worksite. This approach would lay the groundwork for arbitrary enforcement policies, based upon individual compliance officers' subjective beliefs. Similarly, the term "relevant" - undefined in the policy - could cover nearly every document created by an employer, provided that document itself might lead to the discovery of admissible evidence. This approach is far too broad to give any employer comfort concerning the privacy of self-audit information. ASSE suggests that a better policy would be to restrict compliance officers from requesting or demanding self-audit documents prior to a worksite inspection to avoid the "roadmap" potential discussed above.

With respect to the use of self-audits to determine negligence findings, OSHA's proposed policy states: "Where a voluntary self-audit identifies a hazardous condition and the employer promptly takes appropriate corrective measures, OSHA will treat the audit report as evidence of good faith, and not as evidence of a willful violation." (64 Fed. Reg. 54358). This statement mitigates the harm caused by involuntary release of audit documents only slightly (by eliminating the potential for a "willful" violation based upon audit report information), but it actually creates the potential for an even more disturbing enforcement posture - citations based solely on self-reported information.

The problem is that this policy statement is open to two interpretations: (1) an identified hazard that is still present at the time of inspection could be immediately corrected and therefore could be characterized as a "serious" violation (subject to a civil penalty of up to $7,000), but not a "willful" violation (subject to a civil penalty of up to $70,000); or, (2) a recognized hazard that constituted an OSHA violation, which the employer identified in an audit report but promptly corrected prior to initiation of the inspection, would still be categorized as a violation and the employer would be subject to the aforementioned civil penalties based solely on the information contained in his/her self-audit report. While the first scenario could still be a deterrent to self-auditing, the second scenario could have a devastating effect on the initiation of self-audits -- and also of the use of third-party audits, except where such reports were protected as attorney work product prepared in anticipation of litigation. See Hickman v. Taylor, 329 U.S. 495 (1947).

ASSE recognizes that, under certain circumstances, courts agree that OSHA has broad legal authority to obtain documentation concerning employers' voluntarily conducted safety audits. See e.g., Reich v. Hercules, Inc., 857 F. Supp. 367 (D.N.J. 1994). But there are limitations on such demands. For example, the Third Circuit has held that a consultant's audit report was protected under the work product doctrine. See Martin v. Bally's Park Place Hotel & Casino, 983 F.2d 1252 (3d Cir. 1993). Moreover, OSHA's record access rule, 29 CFR 1910.20(c)(6)(ii)(C), incorporates the "work product doctrine" set forth in Fed.R.Civ.P. 26(b)(3). While an employer may not universally have the right to withhold audit records, OSHA still has discretion as to whether it will put the confidentiality of such documents to the test. ASSE respectfully suggests that the best course of action is for OSHA to exercise restraint and adopt a policy that limits access to self-audit documents to those serious situations described above.

ASSE supports new regulatory measures affecting workplace audits if they will promote the increased implementation of self-audit or third-party audit programs in American workplaces, rather than having a chilling effect on auditing. ASSE agrees with OSHA that self-audits can not only reduce workplace hazards and eliminate the potential for willful and repeated violations during OSHA enforcement actions, but can reduce employers' costs associated with workplace injuries, illnesses and fatalities. However, ASSE concludes the proposed policy will do little to foster greater use of self-audits and could actually deter employers from putting in writing their self-critical analyses or hiring third party consultants to perform this function (e.g., at small businesses which lack the in-house capability to carry out safety and health audits).

Therefore, ASSE urges OSHA to consider the recommendations outlined above for establishment of a limited privilege, which we believe will encourage more self-audit programs, protect workers, and assist American businesses to break through the current fatality/injury/illness plateau to a new and improved level of occupational safety and health. ASSE appreciates your consideration of the Society's comments and looks forward to continued cooperative activity with OSHA that will promote worksite audit utilization in the future.

Sincerely Yours,

Frank H. Perry, CSP, PE
Society President, 1999-2000

Copy To: ASSE Board of Directors
                  ASSE Council on Professional Affairs
                  ASSE Governmental Affairs Committee
                  ASSE Contact List
                  OSHA Docket Office, Docket W-100


'See 64 Fed. Reg. 54359.
The proposed policy suggests that self-audits will be encouraged because employers can use such reports to demonstrate "good faith" and therefore be eligible for a 25 percent reduction in civil penalties. (64 Fed. Reg. 54360). ASSE notes, however, that nothing currently prohibits an employer from voluntarily releasing such reports in these situations, or introducing the reports at trial, in order to prove that it made a good faith effort to comply with a mandatory standard or to quickly abate an identified hazard. See 29 U.S.C. § 666(j). The real issue is whether OSHA's asserted right to demand audit reports from a reluctant employer will discourage the conduct of proactive workplace examinations and preparation of such reports to begin with.
The court added that an employer cannot claim "work product" to avoid sharing routine exposure records with OSHA, but only those records prepared in anticipation of litigation. On the other hand, OSHA must show more than a shortage of resources or a "backlog" to demonstrate the undue hardship required to overcome a claim of work product. Id. at 1263-64.


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